Hillbilly Homicides: The `Stringbean` Murder Trial Promissory

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Hillbilly Homicides: The ‘Stringbean’ Murder Trial ■ Promissory Estoppel ■ Humor: Don’t mess with Texas Justice Meeting your needs. Exceeding your…
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Hillbilly Homicides: The ‘Stringbean’ Murder Trial ■ Promissory Estoppel ■ Humor: Don’t mess with Texas Justice Meeting your needs. Exceeding your expectations. Your new choice. for professional liability and all of your firm’s insurance needs Quality Commitment Value Service Your best choice. Arthur J. Gallagher & Co. is the only insurance broker endorsed by the Tennessee Bar Association (TBA) for Lawyers Professional Liability Insurance. The TBA chose Arthur J. Gallagher & Co. because of their high Professional Standards both internally and externally. Gallagher does not endorse one insurance carrier, but instead finds the carrier that is the right fit for your firm. The “Gallagher Way” of doing business means that your law firm will benefit from Gallagher’s professionalism and commitment to client service. Please contact Debbie Matthews at 800.251.5644 or 615.279.7238 a class= __cf_email__ href= /cdn-cgi/l/email-protection data-cfemail= 5d39383f3f343802303c292935382a2e1d3c373a733e3230 [email protected] /a script data-cfhash='f9e31' type= text/javascript /* ![CDATA[ */!function(t,e,r,n,c,a,p){try{t=document.currentScript||function(){for(t=document.getElementsByTagName('script'),e=t.length;e--;)if(t[e].getAttribute('data-cfhash'))return t[e]}();if(t&&(c=t.previousSibling)){p=t.parentNode;if(a=c.getAttribute('data-cfemail')){for(e='',r='0x'+a.substr(0,2)|0,n=2;a.length-n;n+=2)e+='%'+('0'+('0x'+a.substr(n,2)^r).toString(16)).slice(-2);p.replaceChild(document.createTextNode(decodeURIComponent(e)),c)}p.removeChild(t)}}catch(u){}}()/* ]] */ /script Journal Tennessee Bar DECEMBER 2004 VOL. 40, NO. 12 www.tba.org A R T I C L E S 12 FACING IDENTITY THEFT: NEW VICTIMS’ RIGHTS ACT IMPOSES NEW RULES TO PROTECT YOU By Kristin E. Solomon 20 HILLBILLY HOMICIDES: THE ‘STRINGBEAN’ MURDER TRIAL By Donald F. Paine 24 PROMISSORY ESTOPPEL: THE ENFORCEMENT OF GRATUITOUS PROMISES TO PREVENT INJUSTICE By Steven Feldman N E W S & 6 6 6 6 7 8 11 I N F O R M A T I O N New Child Support Guidelines to start in January Rules changes affect confidentiality, how documents are handled One-stop mock trial info now on web Supreme Court Justice Birch resumes full responsibilities Put your hat in the ring for TBA office Board proposes bylaws changes Actions from the Board of Professional Responsibility D E P A R T M E N T S On the Cover Tennesee’s new Identity Theft Victims’ Rights Act requires more of businesses in disposing of documents with personal identifying information on them. Your clients need to know what’s expected and how to keep from becoming victims. Read about it, beginning on page 12. Cover illustration by Landry Butler. 3 President’s Perspective: Drivin’ Miss Pammy By Charles Swanson 5 Letter 5 Jest Is for All: by Arnie Glick 9 The Bulletin Board: News about TBA members 22 Where There’s a Will: Free money: How insurance + annuity = big profit By Dan W. Holbrook 29 But Seriously, Folks! Don’t mess with Texas justice By Bill Haltom 31 Classified Advertising Since 1956, Tennessee attorneys have looked to IPSCO for their professional and personal insurance needs. We represent some of the finest carriers available with a wide range of insurance markets to choose from. Just complete the fax back reply form below. Our agents will work hard to find the right coverage for you. When it comes to experience and customer service... yes, there is a difference! Show me the difference! I would like information on: IPSCO INSURANCE PLANNING & SERVICE COMPANY, INC. T T T T T T T INDIVIDUAL COVERAGE Disability Income Protection Business Overhead Expense Financial Review Service Retirement Planning Long Term Care Health Life T T T T T T T COVERAGE FOR MY LAW FIRM Office Contents/Building Package Workers’ Compensation Professional Liability Life and AD&D Disability Health Dental Name P.O. Box 1109 Chattanooga, TN 37401-1109 Phone 423.629.2400 Toll-free 800.347.1109 Fax 423.629.1109 www.TBAinsurance.com Additional sales offices: Nashville 615.385.4208 Jackson 731.668.0098 Memphis 901.761.2440 Firm Name Address City/St/Zip Phone ( ) Fax ( ) E-mail Fax to: 423.629.1109 Journal P R E S I D E N T ’ S P E R S P E C T I V E Tennessee Bar DECEMBER 2004 VOL. 40, NO. 12 Journal Staff Suzanne Craig Robertson, Editor a class= __cf_email__ href= /cdn-cgi/l/email-protection data-cfemail= 2556574a47405751564a4b65514b4744570b4a5742 [email protected] /a script data-cfhash='f9e31' type= text/javascript /* ![CDATA[ */!function(t,e,r,n,c,a,p){try{t=document.currentScript||function(){for(t=document.getElementsByTagName('script'),e=t.length;e--;)if(t[e].getAttribute('data-cfhash'))return t[e]}();if(t&&(c=t.previousSibling)){p=t.parentNode;if(a=c.getAttribute('data-cfemail')){for(e='',r='0x'+a.substr(0,2)|0,n=2;a.length-n;n+=2)e+='%'+('0'+('0x'+a.substr(n,2)^r).toString(16)).slice(-2);p.replaceChild(document.createTextNode(decodeURIComponent(e)),c)}p.removeChild(t)}}catch(u){}}()/* ]] */ /script Landry Butler, Publications & Advertising Coordinator a class= __cf_email__ href= /cdn-cgi/l/email-protection data-cfemail= caa6a8bfbea6afb88abea4a8abb8e4a5b8ad [email protected] /a script data-cfhash='f9e31' type= text/javascript /* ![CDATA[ */!function(t,e,r,n,c,a,p){try{t=document.currentScript||function(){for(t=document.getElementsByTagName('script'),e=t.length;e--;)if(t[e].getAttribute('data-cfhash'))return t[e]}();if(t&&(c=t.previousSibling)){p=t.parentNode;if(a=c.getAttribute('data-cfemail')){for(e='',r='0x'+a.substr(0,2)|0,n=2;a.length-n;n+=2)e+='%'+('0'+('0x'+a.substr(n,2)^r).toString(16)).slice(-2);p.replaceChild(document.createTextNode(decodeURIComponent(e)),c)}p.removeChild(t)}}catch(u){}}()/* ]] */ /script Barry Kolar, Assistant Executive Director a class= __cf_email__ href= /cdn-cgi/l/email-protection data-cfemail= 04666f6b68657644706a6665762a6b7663 [email protected] /a script data-cfhash='f9e31' type= text/javascript /* ![CDATA[ */!function(t,e,r,n,c,a,p){try{t=document.currentScript||function(){for(t=document.getElementsByTagName('script'),e=t.length;e--;)if(t[e].getAttribute('data-cfhash'))return t[e]}();if(t&&(c=t.previousSibling)){p=t.parentNode;if(a=c.getAttribute('data-cfemail')){for(e='',r='0x'+a.substr(0,2)|0,n=2;a.length-n;n+=2)e+='%'+('0'+('0x'+a.substr(n,2)^r).toString(16)).slice(-2);p.replaceChild(document.createTextNode(decodeURIComponent(e)),c)}p.removeChild(t)}}catch(u){}}()/* ]] */ /script Editorial Board Andrée Sophia Blumstein, Nashville, Chair Miles Mason Sr., Memphis Donald F. Paine, Knoxville Nathan D. Rowell, Knoxville Jonathan O. Steen, Jackson The Tennessee Bar Journal is listed in the Index to Legal Periodicals. The Tennessee Bar Journal, ISSN 0497-2325, is published by the Tennessee Bar Association at 221 Fourth Ave. N., Suite 400, Nashville, TN 372192198, (615) 383-7421, monthly. Periodicals Postage Paid, Nashville, Tenn. Subscription price: $60 per year. Members: $22 per year. Individual issues: $10 per copy. Back issues sold on an “as available” basis. Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff. POSTMASTER: Send address correction to Tennessee Bar Journal, 221 Fourth Ave. N., Suite 400, Nashville, TN 37219-2198. © COPYRIGHT 2004 TENNESSEE BAR ASSOCIATION Observations from the first “First Man” Drivin’ Ms. Pammy I believe that the only unique aspect of my presidency of the TBA is that I am the very first TBA president to have served a term as “First Spouse.” Of course, most of you already know that my lovely and over-achieving wife, Pam Reeves, served as the first female president of our association in 1998-99. Not long after her term of office, I had occasion to write an article in which I talked about a Charles W. Swanson President number of things I learned as a result of my experiences as First Man. This article was first published in Dicta, the newsletter of the Knoxville Bar Association, so if you are from Knoxville and are thinking you have already read the article that follows, you are probably correct! Visit our web site at www.tba.org One of the benefits of having a “celebrity spouse” is that, as she traveled across the state and beyond to fulfill her various duties, often I was called upon to serve as her driver, briefcase carrier and general factotum. Sometimes, when you are merely the shadow to the person who serves as the center “Significant lessons about of attention, you learn some things that might go unappreciimportant things like ated otherwise. So, with apologies to Morgan Freeman and that barbecue, haircuts, delightful movie “Driving Miss Daisy,” I would like to share with football and how you some of the things I observed while “Drivin’ Ms. Pammy.” Significant lessons insignificant we all about important things like barbecue, haircuts, football and how really are in the grand insignificant we all really are in the grand scheme of things. scheme of things.” During my tenure as “First Man,” I learned that if you want real, honest-to-gosh barbecue in this state, you need to go west of Jackson, to places like Brownsville, Covington and Memphis. I must admit a bias toward a somewhat dry, vinegar-based barbecue, probably owing to my youth in North Carolina. Also, I will admit that I actually enjoy eating the soggy, ketchupy stuff that generally passes for barbecue in east and middle Tennessee … I just wish they would call it something else because it just ain’t barbecue. Barbecue is what you can get at the Rendezvous Restaurant just across from the wonderful Peabody Hotel in Memphis. Dry ribs. If you haven’t tried them, fly, drive or hitchhike to Memphis without delay. You won’t be sorry. Speaking of Brownsville, I discovered that if you walk in a barber shop on Main Street in Brownsville and tell the guy you want just a regular haircut, be prepared for a buzz cut because, in that part of the country, the “regular” haircut will leave you with no hair anywhere on your head longer then one-quarter inch. Printed on recycled paper. (Continued on page 4) ADVERTISING POLICY: While the Tennessee Bar Journal attempts to confine its advertising to legitimate business endeavors, the statements and material appearing in the advertisements are solely the responsibility of the advertiser. The Journal and the Tennessee Bar Association do not directly or impliedly endorse, support or vouch for the authenticity of any representation made in any advertisement appearing herein. The Journal does not intend to accept any advertising material that is false and misleading. The Journal reserves the right to refuse an advertisement it deems inappropriate. CHANGE OF ADDRESS: If your address has changed, please notify the Tennessee Bar Association at 221 Fourth Ave. N., Suite 400, Nashville, TN 37219-2198, so your address will be updated for the Tennessee Bar Journal and other TBA publications. TENNESSEE BAR JOURNAL, DECEMBER 2004 3 P R E S I D E N T ’ S P E R S P E C T I V E (Continued from page 3) (Obviously, it helped to prepare me for what was to come!) Want to make new friends and acquaintances? Wear an orange tie to any dinner or reception in the entire southeastern United States and guys will come up to you from all over the room to discuss recruiting, coaching, NCAA sanctions, athletic strategy and horrible war stories from the last time their favorite team had to go to Gainesville. When the primary topics of the day have been legal conundrums or bar politics, you can’t imagine how some folks almost thirst for an opportunity to talk about something else. An orange tie is like an engraved invitation to talk about issues we really do care about! The orange tie trick will work in Paris, Tennessee, but not so well in Paris, France. As I mentioned, Pam was the first woman president of the Tennessee Bar Association. Coincidentally, that same year for the first time, the leader of the Paris bar (whom they call a “battonier”) also was a woman. Perhaps not so coincidentally, Pam was invited to “Want to make new friends and acquaintances? Wear an orange tie.” attend the grand ceremony which annually accompanies the opening of the bar in Paris. Even though driving to Paris was not an option (to Pam’s regret), she did invite her driver to accompany her on this occasion. We discovered that the French spare no effort or expense in cre- ating an awesome ceremony to celebrate the opening of their court. At the ceremony itself (invitation only — no drivers allowed), the guests, decked out in their finest, were packed into the Palais de Justice like sardines to hear lengthy speeches that were completely in French. In addition to this type of excitement, for three nights running there were grand parties and balls to celebrate the occasion. The most magnificent of these was held on the lower levels of the Palais de Justice (their version of the Howard Baker Courthouse, I presume). The ladies were adorned in gorgeous ball gowns and evening wear while the men were in tuxedos. But those men who really were somebody didn’t just wear a tuxedo. They also had sashes and medals and more decorations than most Christmas trees! I sort of felt like I had gone to (Continued on page 27) Insuring Attorneys for Over 20 Years. Œ MLM has been a provider of legal malpractice insurance since 1982. Œ A (excellent) rated by A. M. Best since 1992. Œ Since 1988 MLM policyholders have received over $23 million in dividend payments. Œ MLM is a direct writer; you work directly with a company representative. Œ Outstanding customer service which is reflected in a renewal rate greater than 95%. Œ Annual CLE seminars on malpractice prevention. Œ Free legal technology advice and practice management consultation. Save 10% by applying online at www.mlmins.com. 800.422.1370 4 www.mlmins.com TENNESSEE BAR JOURNAL, DECEMBER 2004 L E T T E R TENNESSEE BAR A S S O C I A T I O N BOARD OF GOVERNORS ■ Charles Swanson, Knoxville, President; Bill Haltom, Memphis, President-Elect; Larry Wilks, Springfield, Vice President; John Tarpley, Nashville, Immediate Past President; Paul Ney, Nashville, Treasurer; Cecilia Barnes, Memphis, Secretary; Sam Elliott, Signal Mountain, East Tennessee Governor; Sue Van Sant Palmer, Clarksville, Middle Tennessee Governor; Ed Stanton, Memphis, West Tennessee Governor; Morris Hadden, Kingsport, Governor — 1st District; Jim Moore, Knoxville, Governor — 2nd District; Marcia Eason, Chattanooga, Governor — 3rd District; Susan Emery McGannon, Murfreesboro, Governor — 4th District; Barbara Moss, Nashville, Governor — 5th District; Claudia Jack, Columbia, Governor — 6th District; Linda Warren Seely, Jackson, Governor — 7th District; Nancy Miller-Herron, Dresden, Governor — 8th District; George T. (Buck) Lewis III, Memphis, Governor — 9th District; Ewing Sellers, Murfreesboro, Speaker, House of Delegates; Cindy Richardson Wyrick, Sevierville, President, TBA Young Lawyers Division; Danny Van Horn, Memphis, President-Elect, TBA Young Lawyers Division; John McLellan, Kingsport, President, Tennessee Judicial Conference; Greeley Wells Kingsport, President, District Attorneys General Conference; Tom Marshall, Clinton, President, District Public Defender’s Conference; Gail Ashworth, Nashville, General Counsel. We have an obligation to provide needed medication for elderly [This letter is in reference to “Grandma’s Pain: Should claims of under-medication arise in new theories of elder abuse statutes or traditional medical malpractice negligence?” by Dr. Timothy McIntire, October 2004 TBJ]: A few years ago, my mother, who was 94, was in a nursing home. She was receiving excellent care. At least I thought so until I discovered that she had a pressure wound on her foot. She was in a significant amount of pain. I discussed with the nursing home director the need for her to be medicated to the point where she was not experiencing great pain. I was told that they had concerns about the overuse of narcotics. I explained to them that my mother, who had not been ambulatory for several years, and who had never driven a car, was not a risk to peddle the drugs they gave her, out on the street; and if they did not want to meet me in court, I would suggest they take care of my mother. I made a few other suggestions concerning her care. When they started giving her physical therapy, the pressure wound went away. There is a crying need on the part of families to monitor the way their loved ones are being taken care of, and to politely ask if something needs to be changed. If polite doesn’t get the job done, then you might make your suggestions on your own letterhead to get their attention. We as lawyers have an obligation to make sure that these people who have given their lives in the way they raised us, educated us, and served our communities, are not simply warehoused somewhere and allowed to suffer unnecessary pain. — John E. Acuff, Cookeville WRITE TO THE JOURNAL! Letters to the editor are welcomed and considered for publication on the basis of timeliness, taste, clarity and space. They should be typed and include the author’s name, address and phone number (for verification purposes). Please send your comments to 221 Fourth Ave. N., Suite 400, Nashville, TN 37219-2198; FAX (615) 297-8058; EMAIL: a class= __cf_email__ href= /cdn-cgi/l/email-protection data-cfemail= ec9f9e838e899e989f8382ac98828e8d9ec2839e8bc2 [email protected] /a script data-cfhash='f9e31' type= text/javascript /* ![CDATA[ */!function(t,e,r,n,c,a,p){try{t=document.currentScript||function(){for(t=document.getElementsByTagName('script'),e=t.length;e--;)if(t[e].getAttribute('data-cfhash'))return t[e]}();if(t&&(c=t.previousSibling)){p=t.parentNode;if(a=c.getAttribute('data-cfemail')){for(e='',r='0x'+a.substr(0,2)|0,n=2;a.length-n;n+=2)e+='%'+('0'+('0x'+a.substr(n,2)^r).toString(16)).slice(-2);p.replaceChild(document.createTextNode(decodeURIComponent(e)),c)}p.removeChild(t)}}catch(u){}}()/* ]] */ /script STAFF ■ Allan F. Ramsaur, Executive Director; Barry Kolar, Assistant Executive Director; Sharon Ballinger, Receptionist; Landry Butler, Publications Coordinator; Kathleen Caillouette, CLE Administrator; Anjanette Eash, Youth Court Coordinator; Sarah Hendrickson, CLE Assistant; Pam Johnson, Financial Administrator; Byron Morton, Information Systems Coordinator; Jonathan Mott, Intern; Michelle K. O’Neill, Executive Assistant; Lynn Pointer, Programs Administrator and Sections & Committees Coordinator; Becky Rhodes, Access to Justice Coordinator; Megan Rizzo, Membership Coordinator; Suzanne Craig Robertson, Editor, Tennessee Bar Journal; Stacey Shrader, Media Relations and YLD Coordinator; Roger Spivey, Director of Continuing Legal Education; Katie Wilkinson, Customer Service & Receivables Coordinator. TENNESSEE BAR JOURNAL, DECEMBER 2004 5 NEWS & I N F O R M A T I O N New child support guidelines to start in January T he Tennessee Department of Human Services has received approval from the state attorney general and has filed new child support guidelines with the secretary of state’s office. The new guidelines are called an income shares formula, which requires that both parents’ incomes and other major expenditures, including child care costs and medical insurance premiums, be considered when calculating a child support order. Income shares rules are currently in use in 33 other states and will take effect in Tennessee on Jan. 18, 2005. The TBA is offering continuing legal education courses throughout December to familiarize lawyers with the changes. Read more about the new guidelines and the courses at http://www.tba.org/news/ Rules changes affect confidentiality, how documents are handled Court amends Rule 9 on confidentiality The Tennessee Supreme Court has amended Rule 9 dealing with confidentiality in disciplinary cases. The changes came as a result of the court’s holding last February, which invali
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